Geoffrey S. Moyse, KC, is a retired senior lawyer who served as legal counsel to the Province of BC, advising six successive governments on Aboriginal law over more than 30 years. He is principal at Moyse Law and an advisor to the Public Land Use Society.

Read the full article at Northern Beat: https://northernbeat.ca/opinion/take-cover-bc-the-battle-of-the-five-armies-over-dripa-has-begun/

Fans of J.R.R. Tolkien’s The Hobbit will recall the great “battle of the five armies” that waged war over the dragon’s treasure of land, riches and resources. Right now, the political version of this epic campaign is unfolding in real time in B.C., with armies assembling and battle lines being drawn over the fate of the Declaration on the Rights of Indigenous Peoples Act (DRIPA). 

At issue is the existential question of what should be done with this now infamous provincial legislation that commits to incorporating the aspirational principles of a United Nations declaration into British Columbia law. The battle, at its core, is over who owns and controls B.C.’s land and resources – that is the treasure.

Originally presented by the late John Horgan’s government in 2019 as a framework for “reconciliation” that would conform to Canadian constitutional law, DRIPA has become something else entirely under Premier David Eby’s watch. Eby’s government has been wielding DRIPA, and more problematically, UNDRIP, like an activist cudgel to go far beyond any previous court decisions. 

Then last November, the BC Court of Appeal went further than even the Eby government had, when it ruled the B.C. government was in violation of its own law. 

In Gitxaala v. British Columbia,the court stated that DRIPA and its companion legislation, the 2021 Interpretation Act—which instructs all B.C. laws and regulations to be consistent with DRIPA—are not just symbolic, but legally enforceable law, and that all laws must align with the principles of the UN declaration. 

Outraged at the “overreaching” and “toxic” court decision, Premier David Eby vowed to craft amendments to restrict the judiciary from being able to apply DRIPA as a law. His government has also filed an appeal of the decision.

As this war begins, the premier and his officials are now clearly hunkered down in the first of the so-called “five army” camps. Alongside them are Aboriginal law experts who believe “the B.C. government has been doing a good job of balancing constitutional rights and risks with the need for certainty and security for all of us.”